Gavel Powers

Byline: John J. Duncan Jr, SPECIAL TO THE WASHINGTON TIMES

In an almost hysterical reaction to comments by Majority Leader Tom DeLay about federal judges, several Democratic members of the House made holier-than-thou speeches last week defending judicial independence.

In perhaps the most ridiculous comment, one member on the House Floor said Mr. DeLay's words had judges all over the nation "cowering in the corners." The majority leader may wish he had that much power, but it is obvious to anyone not seeking partisan political points that he does not.

Mr. DeLay's comments came at the height of the Terri Schiavo case when emotions and feelings ran very high on both sides. Regardless of how one feels about the Schiavo case, and regardless if one is liberal or conservative, everyone should be concerned that the judiciary seems to be setting up as a type of superlegislature. Our Founding Fathers clearly did not mean for the judicial branch to be superior to or more powerful than the legislative and executive branches.

Sen. John Cornyn, Texas Republican, a former State supreme court justice, made some very serious charges on the floor of the Senate April 4. He said, "It causes a lot of people great distress to see judges use the authority they have been given to make raw political or ideological decisions." He added, "Sometimes the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people."

The reason people on both sides of the political spectrum should be concerned about this judicial power grab is that the political pendulum swings. Sometimes conservatives control legislative bodies; sometimes liberals do. Would liberals someday want conservative judges overruling their legislation?

The Schiavo bill was very narrowly drawn to apply to just that case at the request or insistence of more liberal members of both House and Senate. Then some liberals in the media, in Congress and in the courts criticized the bill as being too narrowly drawn. One judge, showing great arrogance in a bitter nonjudicial type opinion, even scolded Congress for acting.

I served 71/2 years as a circuit court or state trial court judge in Tennessee. I have great respect for the legal profession and the judiciary. When I attended George Washington University law school in the early 1970s, I took a course in legislative law. We were taught then that courts were not legislatures. They were not to be political bodies, and they were to give great deference to the actions of the Congress and state legislatures.

In fact, we were taught, through much case law, that the courts' primary role was to try to determine legislative intent, not to try, whenever possible, to overrule it anytime judges might disagree for personal and/or political reasons.

The intent of the Congress was clear in the Schiavo case, with the bill passing the House 203-58 with strong support from both parties and by unanimous agreement in the Senate. …

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